It has been an eventful first 100 days for the Trump team in the realm of homeland security. In his first full week in office, the president made a major splash by issuing three executive orders seeking to make good on controversial campaign promises like a Muslim ban, border wall, and mass deportations. While their lasting effects remain to be seen, particularly with certain key aspects currently enjoined by federal courts, these actions have put homeland security issues of counterterrorism, immigration, and border security, at the center of the national conversation. Still, in other areas of the homeland security mission – such as cybersecurity, aviation security, and the management of the sprawling Department of Homeland Security (DHS) organization – things have been rather more subdued. And, perhaps most importantly, the Trump administration has not yet had to face, nor have we seen how they respond, to a terrorist act in the homeland.
As with any such 100-day stocktaking, it is still early. Much time remains for the administration to roll out new initiatives, for its policies to evolve in implementation, and for events to intervene. But with those caveats, here is a review of President Trump’s homeland security record thus far, and what to look for in the more than 1,300 days to come. It is a record that includes some surprising areas of neglect (including proposed budget cuts to key parts of DHS), some areas for optimism (such as cybersecurity), and plenty of reasons to worry about the Trump team’s damage to its own credibility when future security measures will depend on the public’s trust in the administration.
The defining feature of the Trump administration’s approach to counterterrorism in its first 100 days has been the President’s controversial executive order “Protecting the Nation from Foreign Terrorist Entry Into the United States” – often referred to as the “travel ban,” “refugee ban,” or “Muslim ban.”
The key features of this executive order and its troubled history in the courts are by now well known to most readers of this site, and to most Americans. To recap briefly: first issued on January 27 and re-issued in revised form on March 6, the executive order imposes a 90-day suspension on virtually all travel to the United States from six (originally seven) majority-Muslim countries, and a 120-day suspension on the admission of refugees from all countries (originally an indefinite suspension for refugees from Syria). During the period of the suspension, the Department of Homeland Security and other federal agencies are to review the screening and vetting protocols for these populations, and recommend any enhancements. In the wake of the original order’s disastrous over-the-weekend implementation, a federal judge in Washington enjoined the travel and refugee suspensions (subsequently upheld by the Ninth Circuit), and district court judges in Hawaii and Maryland have enjoined these provisions in the revised order.
From a homeland security perspective (and putting aside potential political and other motivations) the travel ban executive order is notable in at least two significant ways.
First, the order is focused on foreign terrorist travel. The threat posed by foreign terrorists seeking to travel to the United States to perpetrate attacks has been a longstanding focus of the federal government since 9/11. However, many counterterrorism experts agree that the terrorist threat has evolved to include not just “terrorist-directed” attacks emanating from overseas, but also – and perhaps even more so – “terrorist-inspired” attacks by homegrown violent extremists. Recent attacks such as those in San Bernardino, Orlando, and Ohio State have been of the latter category. In its first 100 days the Trump administration has put its focus primarily on the former.
Second, the order proceeds from an assumption that the screening and vetting procedures that have been put in place since 9/11 are so deficient as to merit suspension of entire categories of travelers. Directing a review and enhancements of these procedures is itself unobjectionable, and has been done continually across administrations. But to impose an outright suspension of this type during the pendency of a review is a novel and drastic step. Many (myself included) have argued that it is also counterproductive.
As for efforts to counter homegrown violent extremists, the first 100 days have brought the continuation of Trump’s campaign rhetoric but little by way of tangible change. President Trump and some members of his team continue to refer to “radical Islamic terrorism,” a term President Obama and his administration meticulously avoided. (Reportedly, others on the Trump team would prefer he abandon the term.) Speculation has run rampant that the Trump administration would do away with the previous administration’s approach to “countering violent extremism” – notable for its emphasis on building partnerships with local communities, and addressing various forms of extremism – in favor of a more confrontational, Muslim-centered, and law enforcement-focused approach. However, this has not as yet come to pass, and the Obama-era strategies and associated DHS and Department of Justice (DOJ) offices and interagency task force thus far remain intact.
Looking ahead, the fate of the executive order in the courts will continue to command national attention, although it may ultimately have little impact on the administration’s counterterrorism approach. Presumably, by then, the mandated reviews will be complete, at which point the operative issue will become the new forms of “extreme vetting” that may be imposed. DHS Secretary John Kelly has already suggested some aggressive, and legally questionable, methods involving social media accounts and mobile phones – although it remains unclear the extent to which these are under serious consideration. DHS will also continue to have to grapple with the implementation of other aspects of the order, such as the mandate to implement a costly and technologically challenging nationwide “biometric exit” system to take fingerprints or facial scans of exiting travelers. How efforts to counter homegrown violent extremists may evolve remains an open question: Secretary Kelley himself has gone so far as to say it is a problem for which they still lack a solution. And, of course, it remains to be seen how all of this may change in the wake of the inevitable but unpredictable next terrorist attack in the United States – something the administration and the nation have been fortunate to avoid during the past 100 days.
Immigration and Border Security
The Trump administration’s first 100 days have also been highly consequential for immigration and border security, with a decided shift toward enforcement. Here too this period has been defined by sweeping executive orders, the initial fitful stages of their implementation, and (more recently) court intervention.
Largely overshadowed at the time by the travel ban order, the two executive orders President Trump signed on Jan. 25 (“Border Security and Immigration Enforcement Improvements,” and “Enhancing Public Safety in the Interior of the United States”) during his third full business day in office marked the most sweeping change in U.S. immigration policy in recent memory. DHS has elaborated on these orders with corresponding implementing memoranda (here and here).
A through explication of the numerous, significant provisions contained in these two orders could fill many articles of their own, but major features include the following:
- Direction to build a wall along the southern border, defined as a “contiguous, physical wall or other similarly secure, contiguous, and impassable physical barrier.” Customs and Border Protection has since issued a request for proposals for design prototypes, and the fight over whether to provide funding for the wall in the remainder of this fiscal year nearly caused a government shutdown.
- Expanding immigration detention to include all apprehended individuals pending resolution of their case, except in limited circumstances. This marked a shift from prior practices that more regularly included notices to appear in immigration court and other alternatives to detention, and will require additional detention bed space which Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) have since been working to procure. DHS is also to construct additional detention facilities near the Mexican border and DHS and DOJ are to deploy resources to process cases there.
- The hiring of 5,000 additional Border Patrol agents and 10,000 additional ICE agents. Those numbers would translate into an approximately 25 percent increase for the Border Patrol and a near tripling of ICE’s Enforcement and Removal Operations division.
- Prioritizing prosecutions of immigration offenses, which Attorney General Jeff Sessions has spelled out in recent public remarks and guidance to federal prosecutors.
- Broader enforcement priorities including a more expansive definition of criminal aliens. The orders direct the DHS to prioritize a broad array of individuals for deportation, doing away with the more narrowly enumerated Obama-era immigration enforcement priorities focused on national security, border security, and public safety. In doing so, these changes substantially expand what constitutes a criminal alien to include those who have been convicted of or charged with any criminal offense or who have “committed acts that constitute a chargeable criminal offense.” This marks a shift from the Obama-era practice which limited this category to those who had been convicted, and only for felonies or for multiple or significant misdemeanors. The orders go further to include other categories – such as having “engaged in fraud or willful misrepresentation … before a governmental agency” – which taken together with the broad criminal categories could include virtually any undocumented immigrant.
- Direction no longer to provide deferred action to “exempt classes or categories of removable aliens from potential enforcement” – a clear dig at Obama-era programs like the Deferred Action for Childhood Arrivals (DACA). Nevertheless, President Trump and Secretary Kelly continue to indicate that they will not target DACA recipients for deportation.
- A number of provisions to encourage or compel cooperation between federal immigration enforcement and state and local jurisdictions. These include the denial of federal grants to so-called “sanctuary jurisdictions” (an ill-defined term, and recently enjoined in part by the Northern District of California); reestablishing the practice of issuing detainer requests to state and local jurisdictions to hold individuals in jails for additional time to facilitate their transfer to ICE (a break from the practice later in the Obama administration of only requesting “notification” of pending release); encouraging “287(g) agreements” authorizing state and local law enforcement officials to perform the functions of immigration officers; and issuing a weekly report on state and local jurisdictions that decline detainer requests.
- Various other provisions including expanding the use of expedited removal procedures; exploring arrangements to hold asylum seekers in Mexico pending resolution of their cases; a new weekly report on crimes committed by aliens; and the creation of an office to support victims of crimes committed by illegal immigrants (rolled out by Secretary Kelly last week).
The Trump administration has justified these aggressive border security and immigration enforcement policies largely in terms of stemming illegal immigration, but has also emphasized their role in combatting transnational organized crime. Secretary Kelly and Attorney General Sessions have spoken at length about the threats to homeland security and the effects on American communities posed by transnational criminal organizations, human smuggling, and the drug trade. They have at times gone as far as to link these activities to terrorism, suggesting that transnational criminal organizations may be involved in smuggling overseas terrorist operatives into the United States.
The provisions of the executive orders remain in varying stages of implementation, and some – such as the border wall, increased detention space, and additional Border Patrol and ICE agents – depend on congressional funding and will require years to complete. Others, like holding asylum seekers in Mexico, require the cooperation of the Mexican government and so are not likely to come readily to pass. And as with the travel ban order, action by the courts may also come into play, as seen with last week’s injunction by the Northern District of California against the “sanctuary jurisdictions” funding restriction.
Nevertheless the impacts of these executive orders are already being acutely felt. Reports abound of increased immigration enforcement, including against individuals without criminal records and others who had previously been reporting regularly to ICE offices under orders of supervision. Although ICE has yet to release comprehensive statistics, data on immigration arrests obtained by the Washington Post indicate a 32 percent increase in immigration arrests from January to mid-March compared with the same period last year, and a doubling of arrests of individuals without criminal records. At the same time, data on deportations obtained by CNN indicate that the number of deportations (which can lag arrests because of administrative and court proceedings) from January to mid-April was around 10 percent below comparable periods over the prior two years.
Also of note is the sharp drop-off in individuals apprehended unlawfully crossing the southern border. According to the latest statistics released by Customs and Border Protection, in March 2017 16,600 individuals were apprehended or denied entry at the southern border. This was a 30 percent decrease from the prior month, during a time of year when migration levels typically rise, and represents a whopping more than 70 percent decrease from the last months of the Obama administration. While the specific causes of changes in migration flows are complex and difficult to prove, and although it remains to be seen whether the levels will begin to rise again, it seems likely that Trump policies are thus far having an effect.
Most grades for any 100-day scorecard should be “incomplete,” but this is especially the case for cybersecurity.
The Trump administration inherited a host of challenges in this fast-moving field that, during the Obama administration, grew to be a top homeland security priority. These include building on Obama-era progress in areas like protecting civilian government networks, partnering with the private sector to protect private networks and critical infrastructure, modernizing government information technology systems, and implementing the recommendations of the Obama administration’s blue-ribbon cybersecurity commission. They also include evolving and unresolved challenges like responding to Russian cyber incursions into the electoral process and addressing the longstanding stalemate on encryption policy.
From the first days of the Trump administration, a wide-ranging cybersecurity executive order has been rumored. Despite some concern that the administration might push for certain controversial positions, like moving responsibility for protection of civilian government and private sector networks from DHS to the Department of Defense, early leaked drafts were generally favorably received by cyber experts. Many are optimistic that the time the administration is taking to finish the order – in contrast to the rushed travel, immigration, and border security orders – indicates it is approaching the issue with professionalism and care. Nevertheless, despite continued rumors that it is forthcoming at any moment, the long-awaited cybersecurity executive order has not yet been issued, and the contours of the administration’s cybersecurity policy have yet to be articulated.
Overall, cybersecurity remains an area where – because of the meaty policy questions in play, the rapidly evolving threat landscape, and the relative lack of partisanship (the twists and turns of the Russian incursions notwithstanding) – opportunities for broad-based and bipartisan progress remain.
The first 100 days have been relatively quiet in the realm of aviation security, but the Trump administration’s experience with the so-called “laptop ban” is indicative of the challenges – both external and self-imposed – they will continue to face.
From a homeland security perspective, the restriction announced on March 21 – prohibiting laptops and other large electronic devices as carry-on items on flights to the United States originating from 10 airports in the Middle East and northern Africa – was a notable but relatively straightforward development. The aviation system remains an attractive target for terrorist groups (see the Brussels and Istanbul airports attacks in March and December 2016, and the Metrojet flight 9268 bombing in October 2015), and would-be attackers constantly seek new ways to evade security measures. To the extent that DHS and the Transportation Security Administration (TSA) were receiving threat intelligence about new explosives-smuggling efforts emanating from certain parts of the world, a restriction of this sort was an understandable measure. It was also generally consistent with steps DHS and TSA took at several points during the Obama administration to increase security at overseas last-point-of-departure airports (i.e., airports with direct flights to the United States).
However, when the new restriction was made public, it was received with speculation sometimes bordering on derision. Some questioned whether – because it applied to flights from predominantly Middle Eastern airports – it was a “Muslim ban” in disguise. Others surmised that – because it applied only to foreign carriers (a function of the fact that no US carriers currently service those airports) – it was an indirect form of economic nationalism. These reactions largely died down after homeland security experts outside the administration defended the measure, and after the British government followed suit. The usual strong opinions about air travel security rules, as well as missteps in DHS’s rollout (notably Royal Jordanian Airlines’ tweet the day before the official announcement), likely factored into the initial negative public reaction. But also at play was the Trump administration’s controversial record in other areas of homeland security – the travel ban in particular – which likely fueled greater-than-usual levels of public skepticism.
Looking ahead, it is very possible that continuing and evolving aviation security threats, or future attacks at foreign airports, could prompt DHS to impose additional restrictions. Secretary Kelly has indicated as much in recent comments. If the response to the laptop ban is any indicator, the administration may face challenges in justifying any new such measures to an increasingly skeptical American public.
Management of DHS
Across the rest of the homeland security enterprise, the first 100 days have not brought major shifts, but actions taken (and not taken) on the Department of Homeland Security’s personnel and budget mark some cause for concern.
As with other executive branch agencies, the Department of Homeland Security continues to have many senior-level vacancies. To date, besides Secretary Kelly, who was confirmed on the first day of the administration, the only other Senate-confirmed official currently in place is Deputy Secretary Elaine Duke, who took office in early April. (Indicative of the sad state of senior-level appointments in the Trump administration, this nevertheless puts DHS ahead of virtually every other Cabinet agency.)
Beyond the usual vetting and Senate confirmation challenges, the Trump administration must also contend with struggles among its own internal factions about these personnel picks. Rumors abounded that the more ideological elements of the White House preferred highly controversial Kansas Secretary of State Kris Kobach to be Deputy Secretary, and the heads of the vocal Border Patrol and ICE unions to lead CBP and ICE, respectively. Thus far, perhaps because of the persistence of Secretary Kelly, the administration has not gone this route, but nominees for various key vacancies – particularly the Director of ICE, and as well as mid-level positions not requiring Senate confirmation – have yet to be announced.
Meanwhile, the President’s 2018 budget proposal for DHS has provoked concern that the administration is neglecting critical aspects of the homeland security mission. Overall, the President’s budget calls for DHS to receive an additional $2.8 billion, a 6.8 percent increase. However, this includes an additional $4.5 million for border security and immigration enforcement initiatives, including the border wall, new Border Patrol and ICE agents, and stepped-up detention and deportation operations. This means the rest of DHS is in fact slated for a $1.7 billion decrease.
These proposed reductions, and associated deferred investments, could prove problematic in a number of vital areas. For example, preparedness grants for state and local authorities administered by the Federal Emergency Management Agency (FEMA) are slated to be cut by $667 million, as are TSA grants for airports, rail, and mass transit stations. While this may save the federal government money, it shifts the burden to cash-strapped state and local authorities and risks an overall reduction to homeland security. The budget fails to provide additional funds to TSA at a time the agency needs to sustain the increased resources it took on last year to alleviate long airport wait times. Although the Coast Guard budget is flat, this was after rumored cuts received a strong negative reaction in Congress, and would jeopardize efforts to recapitalize its aging fleet. Perhaps most troubling, the budget does not add needed funds for the Secret Service to address longstanding staffing shortfalls and overworked agents, and to keep up with the increased demands of new and more expensive protectees.
Of course, the administration’s budget is only a proposal, and funding decisions ultimately reside with Congress. Although Congress is unlikely to approve many of the more controversial increases and decreases, it will have to find funds from elsewhere to address the resulting shortfalls. And as a statement of priorities, the budget proposal does little to inspire confidence in the administration’s commitment to the broader, and less ideologically charged, suite of homeland security missions.
Given the outsized role homeland security issues played in Donald Trump’s campaign, it should come as no surprise that they have figured prominently in the first 100 days of his presidency. While his big-ticket actions in the realm of counterterrorism, immigration, and border security will continue to command national attention, it remains to be seen whether his administration will devote similar – or as ideologically charged – energies to other vital areas of the wide-ranging homeland security mission. The Trump team’s thus-far deliberate approach to cybersecurity leaves some room for cautious optimism; its stingy budget proposals for FEMA, TSA, the Coast Guard, and the Secret Service suggest potential neglect.
More fundamentally, the Trump team’s bombastic rhetoric and controversial actions may put the administration in a more difficult position in addressing homeland security challenges going forward. Homeland security relies heavily on trust: trust that the government is being truthful when it claims the existence of threats for which the underlying intelligence is too sensitive to be made public. And trust that the government is responsibly weighing complex trade-offs between security and other interests like privacy, civil liberties, and personal convenience. If the experience with the laptop ban is any indication, the Trump team is facing an increasingly large trust deficit with (at least segments of) the American public. This trust deficit can make it all the more difficult for the Trump administration to take proactive action against emerging threats, or to respond effectively to an actual incident or attack. Time will tell whether the Trump team has hampered its overall ability to provide homeland security by the very actions it claimed would promote it.